Exhibit 10.1


 


SECOND AMENDMENT


 


DATED AS OF DECEMBER 21, 2009


 


TO THE


 


ISDA MASTER AGREEMENT


 


DATED AS OF SEPTEMBER 22, 2009


 


AMONG


 


SEMPRA ENERGY TRADING LLC,


 


MXENERGY INC.


 


AND


 


THE SPECIFIED ENTITIES PARTY THERETO


 

















 


SECOND AMENDMENT dated as of December 21, 2009
(this “Second Amendment”) to the ISDA MASTER AGREEMENT, dated
as of September 22, 2009 (as amended, supplemented or otherwise modified
as of the date hereof, the “Gas Master ISDA Agreement”), among SEMPRA
ENERGY TRADING LLC (“Party A”), MXENERGY INC. (“Party B”) and the
Specified Entities party thereto.


 


W I T N E S S E T H :


 


WHEREAS, Party A and Party B, among
others, are parties to that certain ISDA Master Agreement dated as of September 22,
2009 and to the Schedule dated as of September 22, 2009 to the Gas Master
ISDA Agreement (as amended, the “Gas Master ISDA Schedule”); and


 


WHEREAS, Party A and Party B wish to amend
the Gas Master ISDA Schedule on the terms and conditions provided for herein.


 


NOW, THEREFORE, in consideration of the mutual
covenants and conditions set forth herein, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:


 


ARTICLE I  

DEFINITIONS AND INTERPRETATION


 


SECTION 1.1  Definitions and Interpretation.


 


(a)                                  All capitalized terms used herein which are not otherwise
specifically defined herein shall have the respective meaning as ascribed
thereto in the Gas Master ISDA Agreement.


 


(b)                                 Unless otherwise expressly indicated, all references
contained herein to Sections or other subdivisions, Schedules, Annexes or
Exhibits refer to the corresponding Sections and other subdivisions, Schedules,
Annexes or Exhibits of the Gas Master ISDA Agreement.


 


(c)                                  The sections and the headings in the sections in this Second
Amendment are for convenience only.  Said
sections and headings shall not be deemed to be part of this Second Amendment
and in no way define, limit, extend or describe the scope or intent of its
provisions.


 


ARTICLE II

AMENDMENTS


 


SECTION 2.  Amendment to Part 8(b)(ii)  .  Part 8(b)(ii) 
of the Gas Master ISDA Schedule is hereby amended by deleting words “no
later than 90 days after the Closing Date,” appearing in the second line and
inserting in lieu thereof the following:


 


“no later than April 1,
2010,”


 

















 


ARTICLE III
 MISCELLANEOUS


 


SECTION 3.1  Gas Master ISDA Agreement.  Except as amended by this Second Amendment,
the Gas Master ISDA Agreement shall remain in full force and effect in
accordance with its terms.  This Second Amendment
shall be deemed to be part of the Gas Master ISDA Agreement.


 


SECTION 3.2  References to Gas Master ISDA Schedule.  Whenever in any certificate, letter, notice
or other instrument reference is made to the Gas Master ISDA Schedule, such
reference without  more shall
include reference to this Second Amendment.


 


SECTION 3.3  Legal,
Valid and Binding Obligation.  Each party hereto hereby represents and
warrants that this Second Amendment is a legal, valid and binding obligation of
such party and is enforceable against such party in accordance with its terms.


 


SECTION 3.4  Confirmation and Reaffirmation of ISDA
Documents.  Party B and each
Specified Entity of Party B does hereby (a) consent and acknowledge and
agree to the transactions described in this Second Amendment and (b) after
giving effect to this Second Amendment, (i) ratify and confirm each ISDA
Document to which it is a party and (ii) confirm and agree that each such
ISDA Document is, and shall continue to be, in full force and effect; provided
that each reference to the Gas Master ISDA Schedule therein and in each of the
other ISDA Documents shall be deemed to be a reference to the Gas Master ISDA
Schedule after giving effect to this Second Amendment.


 


SECTION 3.5  Condition
to Effectiveness.  This Second Amendment shall become effective
as of the date set forth above upon receipt by each of the parties hereto of
counterparts of this Second Amendment executed by each other party hereto.


 


SECTION 3.6  .No Other Amendments/Waivers.  Except as expressly amended herein, the Gas
Master ISDA Schedule and the other ISDA Documents shall be unmodified and shall
continue to be in full force and effect in accordance with their terms.  In addition, except as expressly set forth
herein, this Second Amendment shall not be deemed a waiver of any term or
condition of any ISDA Document and shall not be deemed to prejudice any right
or rights which Party B may now have or may have in the future under or in
connection with any ISDA Document or any of the instruments or agreements
referred to therein, as the same may be amended from time to time.


 


SECTION 3.7  Counterparts.  This Second
Amendment may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.  Any executed counterpart delivered by
facsimile or electronic transmission shall be effective as an original for all
purposes hereof.


 


SECTION 3.8  GOVERNING
LAW.  THIS SECOND AMENDMENT, AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CHOICE
OF LAW DOCTRINE, OTHER THAN 


 

















 


SECTION 5-1401
AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK.  THE UNITED NATIONS CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT IN ANY WAY APPLY TO, OR
GOVERN, THIS SECOND AMENDMENT.


 


[Remainder of Page Intentionally Left Blank]


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Second Amendment to be executed and delivered
by their duly authorized officers as of the date first written above.


 


	
   

  	
  SEMPRA
  ENERGY TRADING LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Limar Nissan

  
	
   

  	
   

  	
  Name:
  Limar Nissan

  
	
   

  	
   

  	
  Title:
  SVP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MXENERGY
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chaitu Parikh

  
	
   

  	
   

  	
  Name:
  Chaitu Parikh

  
	
   

  	
   

  	
  Title:
  Chief Financial Officer

  



 


Acknowledged
and Agreed:


 


	
  MXENERGY HOLDINGS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Chaitu Parikh

  	
   

  
	
   

  	
  Name:
  Chaitu Parikh

  	
   

  
	
   

  	
  Title:
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MXENERGY ELECTRIC INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Chaitu Parikh

  	
   

  
	
   

  	
  Name:
  Chaitu Parikh

  	
   

  
	
   

  	
  Title:
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MXENERGY (CANADA) LTD.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Chaitu Parikh

  	
   

  
	
   

  	
  Name:
  Chaitu Parikh

  	
   

  
	
   

  	
  Title:
  Chief Financial Officer

  	
   

  



 

















 


	
  ONLINECHOICE, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Chaitu Parikh

  	
   

  
	
   

  	
  Name:
  Chaitu Parikh

  	
   

  
	
   

  	
  Title:
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
  MXENERGY GAS CAPITAL HOLDINGS CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Chaitu Parikh

  	
   

  
	
   

  	
  Name:
  Chaitu Parikh

  	
   

  
	
   

  	
  Title:
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MXENERGY ELECTRIC CAPITAL HOLDINGS CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Chaitu Parikh

  	
   

  
	
   

  	
  Name:
  Chaitu Parikh

  	
   

  
	
   

  	
  Title:
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MXENERGY GAS CAPITAL CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Chaitu Parikh

  	
   

  
	
   

  	
  Name:
  Chaitu Parikh

  	
   

  
	
   

  	
  Title:
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MXENERGY ELECTRIC CAPITAL CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Chaitu Parikh

  	
   

  
	
   

  	
  Name:
  Chaitu Parikh

  	
   

  
	
   

  	
  Title:
  Chief Financial Officer

  	
   

  



 

















 


	
  MXENERGY CAPITAL HOLDINGS CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Chaitu Parikh

  	
   

  
	
   

  	
  Name:
  Chaitu Parikh

  	
   

  
	
   

  	
  Title:
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  INFOMETER.COM INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Chaitu Parikh

  	
   

  
	
   

  	
  Name:
  Chaitu Parikh

  	
   

  
	
   

  	
  Title:
  Chief Financial Officer